Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated assault and sentenced to twenty years’ imprisonment. Continue reading
IN THE COURT OF CRIMINAL APPEALS
EX PARTE MAX ALEXANDER SOFFAR, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 319724 IN THE 232ND DISTRICT COURT
I agree that applicant is not entitled to habeas corpus relief on his legal claims. Nonetheless, I find this case quite troubling. Judge DeMoss, on the Fifth Circuit Court of Appeals, in addressing the record from applicant’s first capital-murder trial, stated that he had lain awake nights “agonizing over the enigmas, contradictions, and ambiguities which are inherent in this record.” (1) I feel the same way about the similar record from the second trial conducted twenty-five years later. (2) There is something very wrong about this case, even if applicant has not established a prejudicial constitutional violation.
The only connection between applicant and the 1980 triple murder at the Fair Lanes Bowling Center in Houston is applicant’s custodial confession to the police. The sole corroboration of that confession is his offhand street-corner comments to a friend vaguely admitting involvement in the robbery-murders. Applicant’s capital-murder conviction and death sentence depend entirely upon the accuracy and reliability of his confession. But many, if not most, of the details concerning the triple murder that applicant related in his confession were contradicted by, or inconsistent with, the crime-scene evidence, the forensic evidence, and the statements or testimony of the sole surviving victim. In sum, applicant’s confession does not inspire confidence in its accuracy; it appears to be a tale told by one who heard about the robbery-murders rather than by one who committed them.
This is a post-conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure Article 11.071.
In 1981, a jury convicted applicant of the offense of capital murder and returned affirmative answers to the punishment issues submitted under Article 37.071. (1) The trial court, accordingly, set punishment at death. This Court affirmed applicant’s conviction and sentence on direct appeal. Soffar v. State, 742 S.W.2d 371 (Tex. Crim. App. 1987). Applicant then filed an application for a writ of habeas corpus which was denied. Ex parte Soffar, No. WR-29,980-01 (Tex. Crim. App. April 8, 1996) (not designated for publication). He later filed a second application which was dismissed without prejudice while federal habeas proceedings were pending. Ex parte Soffar, 143 S.W.3d 804, 807 (Tex. Crim. App. 2004). The United States Court of Appeals for the Fifth Circuit ordered the federal district court to grant applicant’s federal petition for a writ of habeas corpus and set aside his conviction and sentence. Soffar v. Dretke, 368 F.3d 441, 480 (5th Cir. Tex. 2004). Continue reading
IN THE COURT OF CRIMINAL APPEALS
EX PARTE JOHN REYES MATAMOROS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
IN CAUSE NO. 643410 FROM THE
180TH DISTRICT COURT OF HARRIS COUNTY
On June 13, 2007, we denied post-conviction habeas corpus relief to this applicant, (1) rejecting his Atkins claim that he cannot be executed consonant with the Eighth Amendment because he is mentally retarded. (2) While we explicitly adopted some of the recommended findings of fact and conclusions of law of the convicting court, we expressly declined to adopt the convicting court’s conclusion that the applicant “fails to show by a preponderance of the evidence that he has significant sub-average general intellectual functioning[.]“ (3) Thus, as the federal district court later acknowledged, “the state habeas court ultimately found in [that applicant's] favor on this prong.” (4) We nevertheless held that the applicant failed to establish by the requisite level of confidence that “he has sufficient deficiencies in adaptive functioning for a diagnosis of mental retardation or that there was an onset of mental retardation during [his] developmental period.” (5)
Applicant was convicted of the offense of capital murder in November 1992. The jury answered the special issues submitted under Article 37.071 of the Texas Code of Criminal Procedure, and the trial court, accordingly, set punishment at death. The conviction was affirmed on direct appeal. Matamoros v. State, 901 S.W.2d 470 (Tex. Crim. App. 1995). Applicant’s initial writ, Ex parte Matamoros, No. WR-50,791-01, was denied on December 5, 2001. Applicant’s first subsequent writ application, Ex parte Matamoros, No. WR-50,791-02, in which he claimed that his execution would violate the Eighth Amendment’s prohibition against the execution of the mentally retarded, was denied on June 13, 2007. Applicant again claimed that he was mentally retarded and that his execution would violate the Eighth Amendment in his second subsequent writ application, Ex parte Matamoros, No. WR-50,791-03, which was received in this Court on August 24, 2011. Continue reading
I join Parts I and II of the Court’s opinion without reservation. I can also subscribe to most of what the Court says in Part III of its opinion, and I am content to join it as well–with a caveat. At the risk of quibbling, I write further to explain why I believe it is unnecessary for the Court to overrule the plurality opinion in Johnson v. State. (1) I would also offer an additional observation why the error in this case did not satisfy the “some” harm standard of Almanza/Arline. (2) Continue reading
Appellant was charged with aggravated robbery. The evidence at trial showed that he and his two roommates hatched a scheme to steal money at gunpoint from a woman driving a taqueria truck. He was the designated getaway driver. The abstract section of the jury charge defined the law of parties, and the application paragraph stated that the jury should find appellant guilty if he was “acting alone or as a party (as herein defined)” in committing aggravated robbery. Appellant’s defense was that he was merely present when his roommates committed the robbery. The jury convicted him. The court of appeals, relying on this Court’s plurality opinion in Johnson v. State, (1) found reversible error because the trial judge, over appellant’s objection, declined to apply the law of parties more explicitly in the application paragraph. (2) We granted the State’s petition to decide whether objected-to error in the application paragraph is subject to the usual Almanza (3) harm analysis or a per se finding of harm. (4) We conclude that the usual Almanza factors apply and that any error in the present application paragraph was harmless. We overrule Johnson to the extent that it suggests a per se finding of harm. Continue reading
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of assault causing bodily injury and sentenced to six years’ imprisonment. He did not appeal his conviction. Continue reading
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to forty years’ imprisonment. He did not appeal his conviction. Continue reading
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to life imprisonment. The Fourteenth Court of Appeals affirmed her conviction. Lewis-Grant v. State, 14-09-00069-CR (Tex. App.-Houston[14th Dist.], delivered August 31, 2010, no pet.). Continue reading
We have before us a motion for leave to file an application for a writ of prohibition filed by the Honorable Greg Abbott, Attorney General of the State of Texas, asking us to order the Honorable R. K. Sandill, Judge of the 127th District Court of Harris County, to refrain from issuing any order purporting to stay the November 15, 2012 execution of Preston Hughes, III. Continue reading
IN THE COURT OF CRIMINAL APPEALS
GARY GREEN, Appellant
THE STATE OF TEXAS
ON DIRECT APPEAL
FROM CAUSE NO. F09-59380-S IN THE 282nd DISTRICT COURT
In November 2010, appellant was convicted of capital murder and sentenced to death. (1) Direct appeal to this Court is automatic. (2) Appellant raises 46 points of error. Finding no reversible error, we affirm the judgment of conviction and sentence of death.
I. SUFFICIENCY OF THE EVIDENCE
Appellant was convicted of killing his wife, Lovetta Armstead, and Lovetta’s six-year-old daughter, Jazzmen Armstead, in the same criminal transaction. In point of error twenty-six, appellant contends that the evidence is insufficient to support his conviction for capital murder. When reviewing a challenge to the sufficiency of the evidence, we consider all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. (3) To obtain a conviction for capital murder, as charged in this case, the State was required to prove that appellant intentionally or knowingly committed murder as defined under Section 19.02 (b)(1) and murdered more than one person during the same criminal transaction. (4)
Pursuant to plea bargain agreements, appellant Robert Lee Grant, Jr. pleaded guilty to two charges of aggravated robbery. In each case, the trial court found the evidence sufficient to find Grant guilty, but deferred further proceedings, placed Grant on community supervision for five years, and assessed a fine of $500. The State subsequently filed a motion to revoke Grant’s unadjudicated community supervision in each case. In each case, Grant pleaded true to violating two conditions of his community supervision. In both cases, the trial court found that Grant violated the conditions of his community supervision, found Grant guilty of aggravated robbery, and assessed punishment at twenty-five years of confinement. Continue reading
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-11-00676-CRNO. 09-11-00677-CRNO. 09-11-00678-CRNO. 09-11-00679-CRNO. 09-11-00680-CR____________________
indecency with a child and one count of sexual assault of a child. In each case, the trial
court deferred adjudication of guilt and placed Rivera on unadjudicated community
supervision for ten years. As a requirement of his community supervision, Rivera was to Continue reading
Pursuant to a plea bargain agreement, appellant Maureen Burgess pleaded guilty to the offenses of aggravated assault with a deadly weapon and child endangerment. The trial court, in accordance with the plea agreement, deferred findings of guilt and placed Burgess on community supervision for a period of seven years for the aggravated assault and five years for the child endangerment.
The State filed an application to proceed to final adjudication, alleging Burgess had violated numerous conditions of her community supervision. Burgess pled true to all of the State’s allegations, other than those abandoned by the State. After a hearing, the trial court found Burgess had violated terms of her community supervision, adjudicated her guilty, and sentenced her to ten years confinement for the aggravated assault and two years confinement for the child endangerment. Burgess then perfected this appeal. Continue reading
Appellant Laquida Sauls pled guilty to theft. Later, the State moved to revoke her community supervision and adjudicate her guilt. The trial court granted the State’s motion, and Sauls appeals. For the reasons stated below, we affirm the trial court’s judgments.
Sauls pled guilty to theft, a state jail felony offense. As part of the plea agreement, the court deferred adjudication and placed her on community supervision for five years. Several months later, the State alleged that Sauls committed multiple violations of the conditions imposed by her community supervision, including a new allegation of theft, and moved the court to revoke her community supervision and adjudicate her guilt. Sauls pled true to the new theft allegation. The trial court revoked her community supervision, adjudicated her guilt, and sentenced her to confinement for eighteen months in a state jail facility. Sauls did not request, and the trial court did not make, specific findings that revoking her community supervision would be in her best interest and in society’s best interest. Sauls appeals the trial court’s judgments. Continue reading
Reginald Timothy Prince pleaded guilty to two counts of burglary of a habitation. See Tex. Penal Code Ann. 30.02(a) (West 2011). He entered his pleas in open court without the benefit of a plea agreement as to punishment, other than that the State would recommend that the punishments would run concurrently. Following a punishment hearing, the court adjudged Prince guilty and assessed punishment at eighteen years’ imprisonment for each conviction, with sentences to run concurrently. Continue reading
Appellant was convicted of aggravated assault with a deadly weapon and reckless injury to a child. The trial court assessed punishment at nine years in prison on the aggravated assault charge and two years in State Jail on the injury to a child charge. Appellant filed a timely notice of appeal.
Appellant’s appointed counsel filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), by presenting a professional evaluation of the record and demonstrating why there are no arguable grounds to be advanced. See High v. State, 573 S.W.2d 807 (Tex. Crim. App. 1978). Continue reading
Strickland’s motion for DNA testing of evidence. We have reviewed the record and applicable law, and find no error in the trial court’s ruling. We overrule Strickland’s points of error.
In reviewing a trial court’s decision on a request for DNA testing, we employ a bifurcated standard of review. Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). We defer to the trial court’s determination of issues of historical fact and application-of-law-to-fact issues that turn on credibility and demeanor, while we review de novo other application-of-law-to-fact issues. Id. To obtain DNA testing of evidence containing biological material under Chapter 64 of the Texas Code of Criminal Procedure, the convicted person must file a motion and supporting affidavit showing that the evidence sought to be tested was in the possession of the State during the trial of the offense. The person must also show that the evidence was not previously subjected to DNA testing, or although previously subjected to DNA testing, the evidence can be subjected to testing with newer techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. See TEX.CODE CRIM. PROC. ANN. art. 64.01(a), (b) (West Supp. 2012). Further, the convicted person must establish several facts in the trial court. See TEX. CODE CRIM. PROC. ANN. art. 64.03(a) (West Supp. 2012). Among the required showings are: (1) that identity was or is an issue in the case; and (2) the convicted person establishes by a preponderance of the evidence that a reasonable probability exists that the person would not have been convicted if exculpatory results had been obtained through DNA testing. TEX. CODE CRIM. PROC. ANN. art. 64.03(a)(1)(B), (a)(2)(A). Under the second requirement listed above, the convicted person must show that a reasonable probability exists that exculpatory DNA tests would prove their innocence. Rivera, 89 S.W.3d at 59; Kutzner v. State, 75 S.W.3d 427, 439 (Tex. Crim. App. 2002). The requested DNA testing must conclusively outweigh all other evidence of guilt. Rivera, 89 S.W.3d at 59; Thompson v. State, 95 S.W.3d 469, 472 (Tex. App.–Houston [1st Dist.] 2002, pet. ref’d). This showing has not been made if exculpatory test results would merely muddy the waters. Kutzner, 75 S.W.3d at 43839. Continue reading
Before Justices Morris, Richter, and Lang-Miers Opinion by Justice Lang-Miers
Relator contends this Court violated a ministerial duty by either not filing or not forwarding a motion for extension of time to file a petition for discretionary review in the Court of Criminal Appeals, and that his attorney provided ineffective assistance of counsel. The facts and issues are well known to the parties, so we need not recount them herein. Based on the record before us, we conclude relator has not shown he is entitled to the relief requested. See Tex. R. App. P. 52.8(a); Simon v. Levario, 306 S.W.3d 318, 320-21 (Tex. Crim. App. 2009) (orig. proceeding); State of Tex. ex rel. Hill v. Court of Appeals for the Fifth Dist., 34 S.W.3d 924, 927 (Tex. Crim. App. 2001) (orig. proceeding). Accordingly, we DENY relator’s petition for writ of mandamus. Continue reading